STATE OF DELAWARE
TRANSPORTATION
COMPENDIUM OF LAW
Prepared by
James W. Semple
Cooch and Taylor
The Brandywine Building
1000 West Street, Tenth Floor
Wilmington DE, 19899
Tel: (302)984-3842
Email: [email protected]
www.coochtaylor.com
Updated 2016
A.
RECOVERY FOR RESPONDEAT SUPERIOR, NEGLIGENT ENTRUSTMENT, AND NEGLIGENT
RETENTION, HIRING AND SUPERVISION
1.
RESPONDEAT SUPERIOR
Generally, a viable cause of action against the employee for negligence is a condition
precedent to imputing vicarious liability for such negligence to the employer pursuant to the
theory of respondeat superior. Greco v. University of Delaware, 619 A.2d 900, Del. Supr., (1993),
citing 2 Mechem on Agency § 2012, pp. 1581-82 (1914). See RESTATEMENT (SECOND) AGENCY §
217B(2) (1958) and its comments. Therefore, where the alleged basis for the liability of an
employer is the negligence of an employee, “the employer cannot be held liable unless the
employee is shown to be liable.” Clark v. Brooks, Del.Super., 377 A.2d 365, 371 (1977).
2 Mechem on Agency § 2012. Hence, generally, “if absence of culpability on the part of the
employee to the injured person has been established by litigation, the employer cannot be held
liable to the injured person.” Clark v. Brooks, 377 A.2d at 371. But see inter-spousal immunity
exception in Fields v. Synthetic Ropes, Inc., Del. Supr., 215 A.2d 427 (1967).
Delaware has not imposed liability on a trucking carrier regardless of whether a negligent
act was caused by the carrier’s actual employee.
Hall v Steger, Del. Super., 211 A.2d 628 (1956) involved an action for injuries sustained
in a collision of an automobile in which plaintiffs were riding with a truck driven by one of
defendants on return trip after delivering a load of steel, hauled by him for another defendant
under a one-way lease of truck to such defendant. The Superior Court, granted defendantlessee's motion for summary judgment, held that such a lease was not a subterfuge or sham,
violated no regulation of Interstate Commerce Commission, and showed on its face that
defendant driver was not lessee's agent at time of accident. No Delaware court has yet
considered whether the FMCSA regulations intended to have sweeping effects on the
obligations of motor carriers-lessees, and impose liability without regard to negligence by the
driver.
2.
NEGLIGENT ENTRUSTMENT
To make a prima facie case of negligent entrustment, a plaintiff must show all of the
following: (1) entrustment of the automobile; (2) to a reckless or incompetent driver whom (3)
the entrustor has reason to know is reckless or incompetent; and (4) resulting damages. Leary
v Eschelweck, Del. Super., 2012 WL 1664236 (2012), citing Perez–Melchor v. Balakhani, Del.
Super., 005 WL 2338665, at *1 (2005).
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3.
NEGLIGENT HIRING, RETENTION, AND SUPERVISION
In Smith v Williams, Del. Super., 2007 WL 2677131 (2007), the Superior Court held that,
unlike vicarious liability under the theory of respondeat superior, an employer can be held
independently liable under the theories of negligent hiring and supervision. In order to prevail
on such a claim, the plaintiff must prove the basic elements of negligence against the employer,
i.e. duty, breach, proximate cause, and damages. In general, an employer has a duty to prevent
foreseeable injury to others by exercising reasonable care to avoid employing an incompetent
employee. Id. An act is considered foreseeable if the employer knew or should have known of
the employee's propensity to engage in similar criminal, tortious, or dangerous conduct. Id.
This is a difficult burden to prove in most instances and the failure to provide strong evidence in
support will likely lead to the dismissal of such claims.
B.
PUNITIVE DAMAGES
Punitive damages are imposed in situations where the defendant's conduct, although
unintentional, has been particularly reprehensible, i.e., reckless, willful or wanton, consciously
indifferent or motivated by malice or fraud. Estate of Rae v. Murphy, 956 A.2d 1266, 1270 (Del.
2008); Jardel Co., Inc. v. Hughes, 523 A.2d 518, 528–29 (Del. 1987); Howell v. Kusters, 2010 WL
877510, at *2 (Del. Super. Ct. Mar. 5, 2010). In addition, “mere negligence itself is not a basis
for awarding punitive damages.” Premcor Ref. Grp., Inc. v. Matrix Serv. Indus. Contractors, Inc.,
2008 WL 2232641, at *9 (Del. Super. Ct. May 7, 2008) (citing Rhinehardt v. Bright, 2006 WL
2220972, at *5 (Del. Super. Ct. July 20, 2006)). Inadvertence, mistake, or errors of judgment are
considered acts of mere negligence and do not rise to the level required for claims of punitive
damages. Howell, 2010 WL 877510, at *2. Punitive damages are permitted when the
defendant’s conduct is reprehensible, even though it may be unintentional. For example, in
products liability cases “the imposition of punitive damage claims [is] limited to the persistent
distribution of an inherently dangerous product with knowledge of its injury causing effect
among the consuming public.” See White v. APP Pharms., LLC, 2011 WL 2176151, at *3 (Del.
Super. Ct. Apr. 7, 2011) (denying a motion to dismiss punitive damages where plaintiff alleged
the defendant pharmaceutical company distributed an inherently dangerous drug with a known
dangerous side effect).
Where the evidence supports a reasonable inference that a defendant's conduct meets
the standard for recovering punitive damages, the question of punitive damages is typically for
the trier of fact. Howell, 2010 WL 877510, at *2.
Delaware courts have established that “the factual predicate for punitive damages ‘must be
attributable to the conduct of the charged party, not to a joint tortfeasor.’ Premcor Ref. Grp.,
2008 WL 2232641, at *9 (quoting Empire Fin. Servs., Inc. v. Bank of New York, 2007 WL
1991179, at *6 (Del. Super. Ct. June 19, 2007)).
This is true regardless of whether or not the joint tortfeasor's negligence “is found to be a
contributing factor in the underlying action.” Id.
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In actions arising in contract, punitive damages may be assessed only if the breach of
contract is characterized by willfulness or malice. Tackett v. State Farm Fire & Cas. Ins. Co., 653
A.2d 254, 265–66 (Del. 1995); Segovia v. Equities First Holdings, LLC, 2008 WL 2251218, at *24
(Del. Super. Ct. May 30, 2008) (holding that in a breach of contract claim, the law is settled that
“[p]unitive damages are only awarded in situations of ‘willful and outrageous' conduct that
flows from ‘evil motive or reckless indifference to the rights of others’; Casson v. Nationwide
Ins. Co., 455 A.2d 361 (Del. Super. Ct. 1982). Accordingly, punitive damages are rarely awarded
in breach of contract actions, even where the defendant intentionally breached the contract.
See E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 445 (Del. 1996) (“[N]o matter how
reprehensible the breach, damages that are punitive . . . are not ordinarily awarded for breach
of contract.”).
In general, a plaintiff cannot recover punitive damages for breach of contract unless the
conduct also independently amounts to a tort. Landry v. Mabey Bridge & Shore, Inc., 2011 WL
5592589, at *3 (Del. Super. Ct. Nov. 7, 2011).
Punitive damages may be recovered against the estate of a deceased tortfeasor. Estate
of Farrell ex rel. Bennett v. Gordon, 770 A.2d 517 (Del. 2001) (adopting this minority rule as the
better approach because, absent a specific statutory restriction, “the deterrence effect of the
award is unaltered, and perhaps even enhanced, by the assessment of punitive damages against
the estate of the tortfeasor”) (internal citation omitted).
There is no statutory cap on punitive damages. However, Delaware case law imposes a
limitation of reasonable relation between the amount of punitive damages awarded and the
amount of compensatory damages. Cloroben Chem. Corp. v. Comegys, 464 A.2d 887, 892 (Del.
1983) (“[A]n award of punitive damages may not be disproportionate in amount to the award for
compensatory damages . . . .” (citing Reynolds v. Willis, 209 A.2d 760 (Del. 1965))); see also Presley
v. Silberberg, 1988 WL 90545, at *2 (Del. Super. Ct. Aug. 11, 1988) (applying “reasonable relation”
test and reducing punitive damages); but see Cloroben Chem., 464 A.2d at 892 (reiterating that a
verdict should not be set aside unless it “shock[s] the Court’s conscience and sense of justice”).
Bifurcation is available under Superior Court Rule 42 and, in federal courts, Federal Rule of Civil
Procedure 42. At least one Delaware court has explicitly refused to require a plaintiff to prove
punitive damages by “clear and convincing evidence.” Simon v. Beebe Med. Ctr., Inc., 2004 WL
692647, at *1 (Del. Super. Ct. Mar. 15, 2004). The court found the appropriate standard was the
more moderate “preponderance of the evidence.” Id.
This Compendium outline contains a brief overview of certain laws concerning various
litigation and legal topics. The compendium provides a simple synopsis of current law and is
not intended to explore lengthy analysis of legal issues. This compendium is provided for
general information and educational purposes only. It does not solicit, establish, or continue
an attorney-client relationship with any attorney or law firm identified as an author, editor or
contributor. The contents should not be construed as legal advice or opinion. While every
effort has been made to be accurate, the contents should not be relied upon in any specific
factual situation. These materials are not intended to provide legal advice or to cover all laws
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or regulations that may be applicable to a specific factual situation. If you have matters or
questions to be resolved for which legal advice may be indicated, you are encouraged to
contact a lawyer authorized to practice law in the state for which you are investigating and/or
seeking legal advice.
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